IViR Lecture: (Ir)Responsible Legislature? Speech Risks under the EU’s Rules on Delegated Digital Enforcement

Countries around the world are legitimately demanding that the providers of digital spaces fix the problem of illegal content on their services. The European Union legislature is increasingly entrusting various enforcement tasks to technology firms. However, this delegation of responsibilities creates risks to freedom of expression. In their efforts to remove unlawful or infringing content, firms inevitably block innocent websites, accounts, or content. They over-block legitimate speech. These speech risks cannot be eliminated but must be controlled and minimized.

The talk looks at who and how must do this. It advances two related theses. Firstly, when law expects firms to act by removing content, the legislatures cannot leave it to firms to self-police such adverse effects; delegating states cannot avoid their responsibility. Secondly, the European Union legislature should bear enhanced responsibility to contain such risks. It is argued that the current standards of fundamental rights scrutiny of EU legislature’s acts are heavily under-developed in an important respect. The political economy of the EU legislative process invites that when far-reaching proposals that interfere with fundamental rights are adopted, the thorny questions of how to prevent abuse are left to the national legislatures to fix in course of national implementation. CJEU has the ability to change this. To achieve this, the Union legislation should be sometimes invalidated irrespective of whether the Member States can subsequently fix the failures of the Union legislature in the implementation stage.

Martin Husovec is an Assistant Professor of Law at The London School of Economics and Political Science (LSE). His scholarship deals with questions of innovation policy and digital liberties, in particular, regulation of intellectual property and freedom of expression.

Martin Husovec obtained his Ph.D. from the Max Planck Institute for Innovation and Competition, and Ludwig Maximilian University in Munich for his work on injunctions against intermediaries (published with Cambridge University Press, 2017). Between 2015-2020, he was Assistant Professor at Tilburg University, the Netherlands, appointed jointly by Tilburg Institute for Law, Technology, and Society (TILT) and Tilburg Law and Economics Center (TILEC). He held visiting appointments at Stanford Law School (2014), the Japanese Institute for Intellectual Property (2015), the Central European University (2018) the European University Institute (2018), and Cambridge University (2019). Martin is/was a fellow at Stanford Law School’s Center for Internet & Society (CIS), CREATe, and TILEC. 

Date: 25 March 2022
Time: 16.00 – 17.30 CET (Amsterdam)
Place:
– IViR Room, 5.24, REC A, Nieuwe Achtergracht 166, 1018 WV Amsterdam
– Online via Zoom (you will receive the Zoomlink via e-mail)
See also the flyer.

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